CRPD/C/10/D/4/2011 European Court of Human Rights in the case of Alajos Kiss v. Hungary, in which the Court accepted this argument from applicants who were similarly challenging the restriction imposed on their right to vote by reason of their legal guardianship. 2 3.3 The authors further submit that they did not lodge a complaint under paragraph 82 of Act C of 1997 on Electoral Procedure regarding the deletion of their names from the electoral register. They allege that such a complaint would have been dealt with by the local electoral committee and, on appeal, by the relevant city court. However, none of these authorities have the power to restore the authors’ right to vote and to order their inclusion in the electoral list, as this exclusion is Constitution-based. The authors refer to a decision of the Pest Central District Court, which ruled on 9 March 2006, in a similar matter, that Hungarian courts do not have the power to overrule exclusion from the electoral register which is based on the Constitution. 3 They thus contend that, as this procedure could not lead to the restoration of their right to vote, it was not an effective remedy which they needed to exhaust. 3.4 The authors ask the Committee to find that they have been victims of a violation of articles 29 and 12 of the Convention, to request the State party to introduce the necessary changes to the domestic legal framework, and to award them compensation for nonpecuniary damages on an equitable basis. State party’s observations on the merits 4.1 On 16 January 2012, the State party informed the Committee that it would not challenge the admissibility of the present communication. 4.2 On 31 May 2012, the State party submitted its observations on the merits of the communication. It states that, since the authors’ complaint was filed with the Committee, the relevant legislation has been significantly amended. The Fundamental Law of Hungary entered into force on 1 January 2012 repealing article 70, paragraph 5, of the 1949 Constitution of the Republic of Hungary, which automatically excluded from suffrage all persons under guardianship, restricting or excluding their capacity for any civil law election. Contrary to the previous rigid provision, which is now obsolete, the Fundamental Law requires judges to make decisions on suffrage that take into consideration the individual circumstances of each case. Therefore, adults with disabilities are no longer treated as a homogenous group. Under article XXIII, paragraph 6, a person disenfranchised by a court due to his or her intellectual disability, by virtue of a decision made in due consideration of all the relevant information in the case, shall have no suffrage. 4.3 The State party further argues that this new provision is in conformity with the right to free elections enshrined in article 3 of Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, and with the judgement of the European Court of Human Rights in the case of Alajos Kiss v. Hungary. According to the State party, several member States of the European Union have set similar restrictive rules with respect to suffrage. It notes that Parliament adopted the Transitional Provisions of Hungary’s Fundamental Law as part of the Fundamental Law. This source of law came into force on 1 January 2012, together with the Fundamental Law, and regulates the status of persons who were under guardianship when the Fundamental Law came into force. By 2 Application No. 38832/06, judgement of 20 May 2010, para. 9. The Court found that the exclusion measure pursued a legitimate aim, but nevertheless ruled that it breached article 3 of Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms as it was an indiscriminate measure, lacking an individualized judicial evaluation. 3 Decision No. 1.P.50.648/2006/4, also mentioned in the European Court of Human Rights decision in the case of Alajos Kiss v. Hungary (footnote 2 above), para. 9. 4